Washington Is Finally Learning That Technology Can’t Be Contained

Illustration: Ben Wiseman

So, you unlocked your cell phone in order to jump to T-mobile. Should you go to jail for five years and get fined $500,000? Of course not. That punishment sounds berserk. But earlier this year, that could have happened: Unlock your phone without the permission of your carrier and suddenly you’re breaking bad. For baffled onlookers, it was another example of Washington’s crazy, clueless technology laws.

Here’s the good news: This piece of madness is slowly and patiently being fixed. And we owe it all to a new breed of “bridge-builders” — a small but growing group of folks who understand both the crucial role of technology in our lives and the complex art of the possible in Washington. The yawning gulf between tech and law is slowly narrowing.

Back in 1998, Congress was drafting the Digital Millennium Copyright Act. The law — created after heavy lobbying by record labels and Hollywood studios — was supposed to make it harder for people to copy files. One particular element, section 1201, made it illegal to crack open digital locks designed to prevent copying.

But the language was so broad that phones got swept up too. Mobile-phone companies encrypt the software that locks a phone to a network, so they started claiming that breaking that encryption — unlocking a phone — was illegal under the DMCA.

In tech, you move fast and break stuff. In government, you try to compromise.

By 2006, when Sina Khanifar was a college student with a decent side business selling unlocking software, Motorola could (and did) slap him with a DMCA cease-and-desist order. “It was pretty scary,” Khanifar says. But it also seemed unfair: The phone companies weren’t using 1201 to protect intellectual property. They were using it to keep customers tied down.

Khanifar’s run-in with the law inspired Jennifer Granick, then executive director of the Center for Internet and Society, to take the fight to the Library of Congress (the body that, bizarrely, administers how 1201 applies to phones). She won; in 2006 the Librarian of Congress issued a three-year exemption for phone unlocking, and another in 2009. Khanifar’s business was legit again.

But at the end of 2012, the jig was up. The Librarian of Congress refused to continue the exemption — and phone unlocking became crazy illegal again. By now, though, the political landscape had changed. Khanifar had become a bridge builder.

He’d learned how to straddle two different worlds: The technology industry, where the goal is to innovate quickly — no matter whose business model you ruin — and Washington, where you’re always trying to reconcile competing interests.

Khanifar had tapped into a network of other bridge-builders, like 24-year-old Derek Khanna, a former staffer for Republican senator Scott Brown who’d been fired from the House Republican Study Committee after writing a report arguing that copyright protection was stifling economic growth. But now technologically savvy operators on the Hill were riding high on the massive groundswell of public opposition that had killed the Stop Online Piracy Act in 2012. Copyright, politicians realized, matters to young voters. “We’d finally gotten the attention of legislators on something big,” Khanna says. “So we wanted to see if we could use it for other things too.”

Activists protested aggressive copyright enforcement in New York in January 2012. Photo: Stan Honda/ NEWScom

Phone unlocking fit the bill. Khanna and Khanifar didn’t want exemptions. They wanted DMCA to be permanently altered. “The carriers aren’t even opposed to it anymore,” Khanifar says. And it wasn’t partisan: Plenty of pro-business and libertarian Republicans embraced it.

Copyright, politicians realized, matters to young voters.

Khanifar drafted a White House petition, then spent a month getting more than 114,000 signees — enough to trigger a White House response. President Obama came out in favor of unlocking. Meanwhile, Khanna and other bridge-builders were making connections in Congress: “I’d say, it’s patently crazy to arrest someone for unlocking a phone, and they’d say, of course! And I’d say, OK, well, then let’s change the law!”

By last spring the dominos were toppling. In March Republican representative Bob Goodlatte introduced a bill to grant another extension. In May Democratic representative Zoe Lofgren — whose district includes Silicon Valley — and four colleagues introduced H. R. 1892, a bill that would alter section 1201 so it criminalizes only actual copyright infringement. Lofgren was careful to get bipartisan backing, reaching out to Thomas Massie, a Republican representative who graduated from MIT and drives a Tesla that he charges with his own solar array. Jared Polis, a former ecommerce retailer turned representative, also joined. “It’s important for consumers to be empowered to control the devices that they own and operate,” Polis says. He points out that the revamp goes beyond phones: The bill will make it legal for DIY gearheads to circumvent software in their cars too.

Now, let’s do a reality check here. Industry could still freak out. Even if the bill succeeds, it is, as a practical matter, narrow in scope. Any serious revamp of the DMCA is years away — and Hollywood could make things even worse if the whole bill comes up for revision.

But for now a tiny victory on a tiny issue — phone unlocking — is within reach. It took years of work, and the result is messy and imperfect. But that, ultimately, is the point. This is how good technology laws get made. This is how every law gets made: by slow, patient building of networks, and realizing you can never get all of what you want. That’s why the move-fast-and-break-stuff tech world hasn’t been very good at playing in Washington. But now, at last, bridges are getting built.